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Tuesday, January 17, 2012

Guide to Tanzanian Legal System and Legal Research

By Bahame Tom Nyanduga and Christabel Manning

Bahame Tom Nyanduga*is Advocate of the High Court of Tanzania, and had been the President of the East Africa Law Society between October 2004 - October 2006. The main research for this compilation has been conducted by Ms. Christabel Manning, LL.B, a graduate of the University of Dar Es Salaam currently working in the Legal Department at KPMG (T) Limited and a member of the Tanzania Women Lawyers Association-TAWLA.

Introduction

The United Republic of Tanzania is situated on the eastern seaboard of the African continent, about one degree south of the Equator. Its eastern border is the Indian Ocean, it shares its northern border with the Republic of Kenya and Uganda, and to the West it borders the Democratic Republic of the Congo, the Republic of Rwanda and the Republic of Burundi. The Republic of Zambia and the Republic of Malawi share its borders on the southwest, while in the South it shares a border with Mozambique; it is the union of two historical countries, Tanganyika and Zanzibar.

The United Republic of Tanzania was formed in 1964 through the union of two independent states, namely the Republic of Tanganyika and the Peoples’ Republic of Zanzibar. Zanzibar is an autonomous part of the United Republic, and is made up of two islands, namely Unguja and Pemba, which are found in the territorial waters of the United Republic, in the Indian Ocean. Another island to the south east of the Tanzania, Mafia, is an integral part of mainland Tanzania.

Tanganyika gained its independence from the British, who administered her after the end of the WWII under the United Nations Trusteeship; on 9thDecember 1961 she became a Republic on 9th December 1962. Zanzibar became independent on 12th December 1963. Prior to her independence, Zanzibar, which was ruled by an Arab Sultanate, and enjoyed a protectorate status under the British. One month after she gained independence, the Arab Sultanate regime of Zanzibar was overthrown by a popular revolution on 12th January 1964, which led to the creation of the Revolution Government of Zanzibar.

The Republic of Tanganyika and the Peoples’ Republic of Zanzibar entered into a union on 26th April 1964 to form the United Republic of Tanganyika and Zanzibar, which was later renamed on 29th October the United Republic of Tanzania.

At the time of the Union, Tanganyika was governed by a political party know as the Tanganyika African National Union (TANU), the nationalist party which won the country its independence, while Zanzibar was rule by the Afro Shiraz Party (ASP) which had lead the popular revolution. The two states were by then governed under the one party system of government, i.e. the one party state democracy, which was then very prevalent in Africa. In 1977 the TANU and ASP merged to form the Chama Cha Mapinduzi-CCM party, (otherwise known as the Revolutionary Party), which continued to exercise political control through out the country under the one party regime.

The United Republic of Tanzania was under the leadership of one party system until 1992 when she adopted a new constitution, which enabled the organization of pluralist political parties, and hence in 1995 the first multi party democratic elections were held in the country. Since 1995 the country has held such multi party elections in 2000, and 2005.

Sources of Law

Tanzania’s legal system is based on the English Common Law system. It derived this system from its British colonial legacy, as it does the system of government, which is based to a large degree on the Westminster parliamentary model.

The Constitution

Unlike the unwritten British constitutional system, the first source of law for the United Republic of Tanzania is the 1977 Constitution. The constitutional history of Tanganyika traces its background from the 1961 Independence Constitution, which was adopted at the time of independence. In 1962 Tanganyika adopted the Republican Constitution, which operated from 1962 up to 1965. These two were based on the traditional Lancaster style constitutions negotiated at independence by the British upon handover of state power to newly independent states. In 1965 Tanganyika adopted an Interim Constitution while the country awaited a new constitution to be drafted, after it abolished the multi party political system and adopted a one party state system. The process lingered longer than it was meant to and thus the constitution lasted from 1965 up to 1977 when a new constitution was adopted and it has remained applicable to date, with fourteen subsequent amendments.

The Constitution provides for a bill of rights, notwithstanding the fact that it also makes provision for a number of claw-back clauses. In other words the enjoyment of certain rights and freedoms under the constitution is not absolute, but it is subject to legal regulation.

The Bill of Rights is found in part three of the first Chapter of the Constitution and the fundamental rights and freedom are stipulated in article 12 to 24, article 25 to 28 imposes duties on every individual to duties and obligations to respect the rights of others and society. Article 29 establishes the obligation of society to every individual.

Article 30 of the Constitution limits the application of these rights subject to law and the under the due process of law, as the case may be.

The Constitution allows any person to challenge any law or act/omission, which contravenes his or her right, or the Constitution.

Statutes

The second source of law is the Statutes or Acts of Parliament. The Laws Revisions Act of 1994 Chapter Four of the laws of Tanzania [R.E. 2002,] established that all legislations previously known as Ordinances, i.e. those which were enacted by the pre independence colonial administration, as Orders in Council, can now be legally recognized as Acts. These principal legislations, and subsidiary legislations thereto, are published in the Government Gazette and printed by the Tanzania Government Printers.

Case Law

The third source is case law. These are cases from the High Court and Court of Appeal which are either reported or unreported and are be used as precedents, and bind lower courts thereto.

Reported Tanzanian cases are found in the Tanzania Law Reports, High Court Digests and East Africa Law Reports.

Received Laws

The fourth source is Received Laws established under Section 2.3 of The Judicature and Application Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA) these include: Common Law, and Doctrine of Equity, Statutes of General Application of England, applicable before the 22 of July 1920, which is deemed to be the Reception date for English Law in Tanzania.

Customary and Islamic Law

The fifth source is the Customary and Islamic law, which are established under section 9 of JALA. Whereby customary law is in effect only when it does not conflict with statutory law whilst Islamic law is applicable to Muslims under the Judicature and Applications of Laws Act, empowering courts to apply Islamic law to matters of succession in communities that generally follow Islamic law in matters of personal status and inheritance.

International Law (Treaties and Conventions)

International Laws, that is, Treaties and Conventions, are not self-executing. The Act of Parliament can apply treaties and conventions to which Tanzania is a party in the Courts in Tanzania only after ratification

Government Structure

The United Republic of Tanzania is a unitary state based on a multiparty parliamentary democracy. In 1992 the Tanzanian government introduced constitutional reforms permitting the establishment of opposition political parties.

All matters of state in the United Republic are exercised and controlled by the Government of the United Republic of Tanzania and the Revolutionary Government of Zanzibar. The Government of The United Republic of Tanzania has authority over all Union matters in the United Republic, as stipulated under the Constitution, and it also runs all non union matters on Mainland Tanzania, i.e. the territory formerly known as Tanganyika. Non-union matters are all those which do not appear in the Schedule to the Constitution which stipulates the list of Union matters.

The Revolutionary Government of Zanzibar, similarly, has authority on Tanzania Zanzibar, i.e. the territory composed of the islands of Unguja and Pemba, over all matters, which are not Union Matters. In this respect the Revolutionary Government of Zanzibar has a separate Executive, legislature, known as the House of Representatives, and a judicial structure, which functions from the Primary Court level to the High Court of Zanzibar, which are provided for under the 1984 Constitution of Zanzibar.

There are three organs for central government of the United Republic of Tanzania: the Executive, Judiciary and the Legislature. Local Government Authority is exercised through Regional and District Commissioners

The functions and powers of each of the three organs are laid out in the 1977 Constitution of the United Republic of Tanzania.

Parliament is established under Chapter Three, the Executive is established under Chapter Two and the Judiciary under Chapter Five.

The Executive

The Executive of the United Republic comprises of the President, The Vice-President, President of Zanzibar, the Prime Minister and Cabinet Ministers.

The President of the United Republic is the Head of State, the Head of Government and the Commander-in-Chief of the Armed Forces.

The President is the Leader of the Executive of the United Republic of Tanzania

The Vice President who is the principal assistant to the President in all matters of the United Republic is responsible for:

Following up the daily implementation of Union Matters

Performing all duties assigned to him by the President

Performing all duties and functions of the President’s office when the President is out of office or out of the country.

The Prime Minister of the United Republic is the leader of Government business in the National Assembly, controls, supervises and executes daily functions and affairs of the Government of the United Republic, and any other matters the President directs to be done.

The President of Zanzibar is the Head of the Executive for Zanzibar, i.e.; the Revolutionary Government of Zanzibar and is the Chairman of the Zanzibar Revolutionary Council.

The Cabinet of Ministers, which includes the Prime Minister, is appointed by the President from among members of the National Assembly. The Government executes its functions through Ministers led by Cabinet Ministers.

President Jakaya M Kikwete became the current President of the United Republic on the 21st December of 2005 after a historic victory, winning 80.3% of the total votes, and Dr Ali Mohammed Shein is the Vice President of the United Republic of Tanzania. Dr Shein had previously served as Vice-President since 5th July 2001, prior to the 2005 General Elections.

Since independence, Tanzania has held peaceful elections. Tanzania was a one-party system of democracy between 1965, 1970, 1975, 1980, 1985, and 1990; in the first elections, held in 1962, the ruling party captured all seats hence the de-facto one party state emerged, to be later regularized by law in 1965.

In 1992, following the constitutional reforms, described herein above, the formation and organization of political parties is now conducted under the Political Parties Act 1992. About 18 political parties have been registered since then and multiparty general elections were held under the new multiparty system in 1995, 2000, and 2005.

The Legislature

The Legislature, or the Parliament of the United Republic of Tanzania, consists of two parts, i.e. the President and the National Assembly. The President exercises authority vested in him by the Constitution to assent to bills by Parliament in order to complete the enactment process before they become law.

The National Assembly, which is the principal legislative organ of the United Republic, has authority on behalf of the people to oversee and the accountability of the Government of the United Republic and all its organs of their particular duties.

The Parliament is headed by the Speaker, who is assisted by the Deputy Speaker, and the Clerk as the head of the Secretariat of the National Assembly. The National Assembly also has various standing Committees to support in its various functions. The National Assembly of Tanzania is constituted by one chamber, with members elected form various constituencies across mainland Tanzania and Zanzibar. Under the Constitution, women’s representation is provided for as a special category, in order to increase the participation of women in national politics. Elections are supervised by the National Electoral Commission which is established under the Constitution.

The Judiciary

Judicial System of Mainland Tanzania

The legal system of Tanzania is largely based on common law, as stated previously, but is also accommodates Islamic or customary laws, the latter sources of law being called upon called upon in personal or family matters.

The judiciary is formed by the various courts of judicature and is independent of the government. Tanzania adheres to and respects the constitutional principles of separation of powers. The Constitutional makes provision for the establishment of an independent judiciary, and the respect for the principles of the rule of law, human rights and good governance.

The Judiciary in Tanzania can be illustrated as follows. The Judiciary in Tanzania has four tiers: The Court of Appeal of the United Republic of Tanzania, the High Courts for Mainland Tanzania and Tanzania Zanzibar, Magistrates Courts, which are at two levels, i.e. the Resident Magistrate Courts and the District Court, both of which have concurrent jurisdiction. Primary Courts are the lowest in the judicial hierarchy.

Court of Appeal

The Specialized Divisions - High Court of Tanzania -- The High Court of Zanzibar

Resident Magistrates Courts

District Courts

Primary Courts

Court of Appeal

The Court of Appeal of Tanzania, established under Article 108 of the Constitution, is the highest Court in the hierarchy of judiciary in Tanzania. It consists of the Chief Justice and other Justices of Appeal. The Court of Appeal of Tanzania is the court of final appeal at the apex of the judiciary in Tanzania.

The High Court of Tanzania (for mainland Tanzania) and the High Court of Zanzibar are courts of unlimited original jurisdiction, and appeals there from go to the Court of Appeal.

High Courts

The High Court of Tanzania was established under Article 107 of the Constitution and it has unlimited original jurisdiction to entertain all types of cases. The High Courts exercise original jurisdiction on matters of a constitutional nature and have powers to entertain election petitions. The High Court’s Main Registry, (which includes the sub-Registries) caters for all civil and criminal matters. The High Court (mainland Tanzania) has established 10 sub Registries in different zone of the country. It also has two specialised divisions, the Commercial Division and the Land Division. All appeals from subordinate courts go to the High Court of Tanzania.

Subordinate Courts

These include the Resident Magistrate Courts and the District Courts, which both enjoy concurrent jurisdiction. These courts are established under the Magistrate Courts Act of 1984. The District Courts, unlike the Resident Magistrates Courts, are found throughout all the districts in Tanzania (the local government unit.) They receive appeals from the Primary Courts, several of which will be found in one district. The resident magistrates Courts are located in major towns, municipalities and cities, which serve as the regional (provincial) headquarters.

Primary Courts

The primary courts are the lowest courts in the hierarchy and are established under the Magistrates Courts Act of 1984. They deal with criminal cases and civil cases. Civil cases on property and family law matters which apply customary law and Islamic law must be initiated at the level of the Primary Court, where the Magistrates sits with lay assessors. (The jury system does not apply in Tanzania)

Tribunals

There are specialized tribunals, which form part of the judicial structure. These for example include District Land and Housing Tribunal, Tax Tribunal and the Tax Appeals Tribunal, Labour Reconciliation Board, the Tanzania Industrial Court, and Military Tribunals for the Armed forces. Military Courts do not try civilians. A party who feels dissatisfied with any decision of the Tribunals may refer the same to the High Court for judicial review

Judicial System of the Revolutionary Government of Zanzibar

The High Court of Zanzibar has exclusive original jurisdiction for all matters in Zanzibar, as is the case for the High Court on mainland Tanzania.The Zanzibar court system is quite similar to the Tanzania mainland system, except that Zanzibar retains Islamic courts. These adjudicate Muslim family cases such as divorces, child custody and inheritance. All other appeals from the High Court of Zanzibar go to the Court of Appeal of Tanzania.

The structure of the Zanzibar legal system is as follows;

Court of Appeal

↑

High Court

↑

Magistrate Court ↔ Kadhi’s Appeal Courts

↑↑

Primary Courts Kadhi’s Court

Court of Appeal of Tanzania

The Court of Appeal Tanzania handles all matters from the High Court of Zanzibar.

High Court

The High Court of Zanzibar is structured with the same structure as the High Court of Tanzania Mainland and it handles all appeals from the lower subordinate courts.

Magistrate’s Court

These Courts have jurisdiction to entertain cases of different nature, except for cases under Islamic law, which they have no jurisdiction to try which are tried in the Kadhi’s courts.

Kadhi’s Appeal Court

The main role of the Kadhi’s Appeal Court of Zanzibar is to hear all appeals from the Kadhi’s court, which adjudicates on Islamic law.

Kadhi’s Courts

These are the lowest courts in Zanzibar which have adjudicate all Islamic family matters such as divorce, distribution of matrimonial assets, custody of children and inheritance but only with Muslim families.

Primary Courts

These have the same rank as the Kadhi’s Courts and they deal with criminal and civil cases of customary nature.

Locating Legal Material

There are a number of places one can obtain legal materials in Tanzania: Libraries, The Library of the Court of Appeal of Tanzania, the High Court Library, the High Court Land Division Library, Commercial Division of the High Court Library, the Attorney General’s Office at the Ministry of Justice and Constitutional Affairs, University of Dar Es Salaam, National Archives, Government Bookshop, Dar Es Salaam Bookshop, the United Nations Information Centre, The International Criminal Tribunal for Rwanda in Arusha, Mzumbe University and many more others.

Case Law

Reported cases in Tanzania can be found in a number of Law Reports. Between 1957and 1977 cases reported from the High Court of Tanzania and the East African Court of Appeal appeared in East Africa Law Reports.

Law Africa, a law report publishing company has updated the reports for cases from the three East African jurisdictions, of Kenya, Uganda and Tanzania up to 2007. Current editions of the law reports can be sourced from Law Africa Publishers, email sales@lawafrica.com.

A complete set of the Statutes of Tanzania, the Laws of Tanzania- Revised Edition of 2002 (21 Volumes,) including a supplementary legislation, and subsidiary legislations can be bought online from the same references above.

The Tanzania Government Printer publishes the government's Official gazette. The Official gazette publishes bills, legislative enactments, before and after assent, subsidiary legislations, announcement of all official government appointments and dates of entry into force of all legislations. The same can be ordered through the Government Publications Agency. Any other information on Tanzania can be accessed online.

The Legal Profession: The Legal Profession in Tanzania The Law and Practice. By Fauz Twaib

Legal Education

To pursue a legal career in Tanzania one may start with a Certificate in Law, particularly for persons who have discontinued secondary education, followed by a Diploma in Law, a Degree in law (LL.B) and continue with a Postgraduate Diploma in Law (PGDL), Masters of law (LL.M), Degree of Doctor of Philosophy (Ph.D) and Doctor of Laws (LL.D), which is the highest doctorate to be awarded.

Students who have successfully completed advanced secondary education and who qualify with good academic grades can also join a law degree courses offered at any of the Universities in the country.

There are a number of Universities, which offer courses in law such as the University of Dar es Salaam, Mzumbe University, Open University, Tumaini University Ruaha University under St. Augustine and other institutes, which offer diploma in law such as Mzumbe University and Lushoto Institute of Judicial Administration. Certificate in Law courses are taught at the other institutes of learning such as the Police College and have enabled successful candidates to pursue law degree courses.

Any LL.B degree holder who has attended internship and Pupilage in two years can apply to sit the Bar exam which is held three times a year. The Bar exam is an oral interview conducted under a panel of the Council for Legal Education, which is composed of representatives of the Chief Justice of the United Republic of Tanzania, the Attorney General of the United Republic, the Dean of Faculty of Law, of the University of Dar Es Salaam, and two representatives of the Law Society. A successful candidate is sworn in and enrolled as an Advocate of the High Court of Tanzania and sub-ordinate Courts thereto. Advocates do not have the right of audience before the Primary Courts in Tanzania.

Legal Profession

Any person enrolled as an advocate under the Advocates Act, Chapter 341 of the Laws of Tanzania [R.E.2002] and listed as a member of the Tanganyika Law Society, established pursuant to the Tanganyika Law Society Act Chapter 307 of the Laws of Tanzania [R.E 2002] can practice law as an Advocate and shall be subject to the disciplinary rules and etiquette as promulgated under the said laws, and subject to the Ethics Committee of the Law Society and the Advocates Disciplinary Committee established under the Advocates Act CAP 341.

Any inquiries as to the practice of law in Tanzania may be addressed to the Executive Secretary, Tanganyika Law Society; email;info@tanganyikalawsociety.or.tz

* I wish to acknowledge with the thanks the industry and time taken by Christabel Manning for conducting the research and putting together the basic draft for this compilation, without whose assistance, this article would not have been possible.

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